Right of Publicity Laws
How do they affect you and your work?
Do you use images or likenesses of people other than you in your or your company’s marketing materials, films, commercials, or artwork?
Has your image or likeness been used by another person or company for commercial purposes?
In both of these situations, it is important to know that a person has the legal right to exploit their own name, face, and other attributes of their likeness — and if they do not grant permission to the user, there may be a right of publicity violation.
In essence, the person whose image is being used without proper clearance may have legal remedies against the user of the image and that person may be entitled to compensatory damages for the unauthorized use.
Pictures and Video Everywhere Now
We see pictures and videos of people in many different settings – television commercials, on the internet, even on the side of a bus; more often than not that person has granted the brand or the website the right to display their image for commercial purposes. In today’s digital world — one in which your image could end up in a widespread Internet meme or an Instagram post which is shared millions of times — it is more important than ever to know how right of publicity laws may apply to you or your company.
The right of publicity is regulated by state law – specifically, the state in which the individual is domiciled or where the damage occurred. This is different from other intellectual property rights like copyrights and patents, which are regulated at the federal level, i.e. nationally and more or less uniformly. Rights of publicity, however, exist and are enforced differently in each state.
For example, New York’s right of publicity has been codified within Article 5 of the NY Civil Rights Law. In order to have a cause of action, New York requires that the name or image in question was used for commercial purposes (“for advertising purposes, or for the purposes of trade”). New York also lists exceptions to the rule, including a “newsworthiness” exception which states that a person’s right of publicity is not violated where their name or likeness is used in connection with a matter of public interest or a newsworthy article or story.
In California, publicity law also focuses on the commercial aspect of the exploitation, This is codified in California Civil Code §3344. Courts in California interpret the statute as imposing a test which asks: (1) whether the use of the plaintiff’s identity was done “knowingly”; (2) whether the use was for the purposes of advertising; and (3) whether there was a direct connection between the use and the commercial purpose. California also grants extremely broad protection to one’s right to privacy by extending publicity rights for a period of 70 years after death. New York, on the other hand, does not provide for a posthumous right of publicity.
In Tennessee, the right of publicity is laid out under the Personal Rights Protection Act of 1984. This law is interpreted to offer a property right in a person’s name or likeness “in any medium in any manner.” This means that it’s typically construed as being broader than in New York or California, since the right of publicity in Tennessee extends to uses that need not necessarily be commercial uses. Similarly to California’s law, Tennessee grants the right of publicity posthumously; however, Tennessee limits the amount of time in which the right exists to ten years after death.
The Bottom Line
As you can see, since publicity laws are not enforced uniformly across the states, it is important to understand which image and likeness rules apply to you — and if you are a business, it’s important to understand the rights of others who may appear in your marketing materials (even if it’s just in the background!).
Please feel free to contact us about any right of publicity related questions that you may have. We are here to help.